McClenney v. McClenney

• Decision Date: 31 December 1848
• Citation: 3 Tex. 192
• Court: Texas Supreme Court
• Parties: JAMES M. & WM. D. MCCLENNEY v. STEPHEN G. MCCLENNEY, and the ADMINISTRATORS OF JOSEPH FLOYD, Deceased, et al.

3 Tex. 192

JAMES M. & WM. D. MCCLENNEY

v.STEPHEN G. MCCLENNEY, and the ADMINISTRATORS OF JOSEPH FLOYD, Deceased, et al.

Supreme Court of Texas.

December Term, 1848.

Error from Walker County.

The statute of limitations is available upon demurrer, if the petition shows on its face that the action is barred.

Creditors alone have a right to question the validity of a transfer of property to a third party; and the purchaser of the property may defend his right by showing that the character of creditor does not exist on the part of him who attacks the transfer.

A purchaser may set up the statute of limitation to a claim against his vendor, when the claim is sought to be enforced against the property purchased. This is a legitimate mode of showing that the character of creditor does not exist.

The execution of a lien on property in Alabama is no notice to affect creditors or subsequent purchasers of the same property in this country; and unless actual notice to the creditor or purchaser here is averred in the petition, in a suit to enforce the lien, a demurrer to the petition will be sustained.

When a party pleads generally to an action, without setting up the statute of limitations in any form, either by demurrer or otherwise, it will be considered that he waives the statute.

Case stated in the opinion of the court.

YOAKUM, for plaintiffs, made and elaborated the following points: 1st. The plaintiffs being parties beneficiary in the trust, the holding of the negroes by S. G. McClenney was not inconsistent with the trust, and the statute of limitations would not run against them.

2d. That at all events it would not run against them in favor of a fraudulent purchaser, and without consideration. The demurrer admits the allegations in the petition.

3d. That it would not run in favor of Floyd until he obtained possession. The possession of McClenney will be deemed the possession under the bona fide and not the fraudulent claimant.

4th. That Floyd cannot plead the statute of limitations for McClenney.

The suit is brought by the cestui que trust on the mortgage. A fraudulent sale of the property could not divest their rights; they remained attached to it in the hands of the purchaser. [1 Story's Eq. sec. 433; 2 Story's Eq. sec. 977; 1 Peere Wms. 129; 2 Vernon, 271; 2 Fonbl. Eq. B. 2, ch. 7, sec. 1.]

Floyd, by his demurrer, admits that his purchase was without consideration, fraudulent and void. What right, then, has he to plead the statute for S. G. McClenney?

This is a technical trust, expressed in the deed; and the statute does not run as between the cestui que trust and those who hold the property for their benefit. [Mart. & Yerg. R. 361; 3 Yerg. 201;4 Yerg. 104;9 Cow. 437.]

There cannot be a dissenisin, abatement or intrusion, as to a trust estate, technically so called; the intruder being deemed to hold for the cestui que use. [1 Madd. Ch. 363; 4 Kent's Com. p. 189; sec. 58, 2 Story's Eq. 975.]

S. G. McClenney, who created the trust, stipulated that he should retain the use and control of the property until a sale became necessary. He is, therefore, pro tanto, a trustee, not by implication, but by contract. His holding is consistent with the trust, and a voluntary and fraudulent claimant, under him, holds in the same light. No lapse of time can aid a voluntary and fraudulent claimant not in possession. [10 Yerg. 376;4 Yerg. 104; Dallam, 435 and 568.]

The bar in this case could not be sustained even on a plea, still less on demurrer.

GILLESPIE for defendant in error.

This suit was not maintainable against any of the parties. No cause of action or right to a decree was shown by the petitioners. Their suit was in the nature of a chancery proceeding, and a demurrer has always been held to meet the defense set up and insisted on in the exceptions. [Swenson et al. vs. Walker's Adm'rs.]

The act of 1836, p. 156, provides that no right as against third parties shall be enforced until the lien is recorded in the county where the property may be. None such being recorded, and the time having elapsed when suit could have been maintained on the notes, the defendant Floyd had a right to regard it as a rule of property, and his claim secure. [Ross vs. Duval, 13 Peters.]

The mortgage was only auxiliary to the notes, to be acted on as circumstances might require. The foundation, the real cause of action, having failed by lapse of time, the other must fall. [Stampers vs. Johnson, decided present term.]

The whole proceedings in this case show that it is but another mode adopted between all the parties, except the administrator Floyd, to deprive the estate of the property expected from the suit referred to in the petition. Their defenses are fashioned to assist the plaintiffs in obtaining a judgment, and for which reason the court below dismissed the whole bill.

LIPSCOMB, Justice, delivered the opinion of the court.

This was a suit brought by the plaintiff to foreclose a mortgage.

The petition states that the defendant, Stephen G. McClenney, on the 12th of July, 1839, executed to one Justice M. Rawls a conveyance of certain negroes in trust to pay certain debts, to become due to the plaintiff at the time stated in the mortgage; the last payment falling due on the 28th of April, 1841. In the event of the non-payment of the debt by Stephen G. McClenney, the trustee, at the request of either of the beneficiaries named in the trust deed, should sell at public auction in Union Town, in the state of Alabama, where the mortgage was made, and where the property and the mortgagor then were (first giving the notice required in the deed), the negroes, or so many of them as should be necessary. The petition further shows that, until the sale should become necessary, Stephen G. McClenney should use and control the property. The petition also alleges that, in the spring of 1840, the said Stephen G., without the knowledge or consent of the parties to the trust, brought the negroes to the then republic of Texas.

That in 1842 the trustee died, and in the fall of that year Stephen G. McClenney, without any consideration, transferred the negroes to Joseph Floyd, his then father-in-law. Plaintiff alleges that this transfer was fraudulent, and that Stephen G. McClenney retained possession of the negroes. That Joseph Floyd, dying intestate, George A. Floyd, his administrator, sued Stephen G. McClenney for the negroes, which suit is still pending.

This suit was commenced on the 15th of December, 1847; the petition was taken as confessed against all the defendants except Floyd and Stephen G. McClenney.

On the 31st of March, 1848, Floyd filed a general demurrer, and other defenses; and at the succeeding term, without leave of the court, filed his exceptions, setting up the statute of limitations.

The defendant, Stephen G. McClenney, for answer filed a general denial, and answered certain interrogatories in the case.

The court sustained the demurrer and exceptions of Floyd, and dismissed the suit as to him; and the cause coming on to be heard as to the defendant Stephen G. McClenney, the suit was also dismissed as to him. To reverse the decrees above stated the plaintiff obtained a writ of error.

We will first examine the decrees on the demurrer of Floyd. The petition of the plaintiff showed that the debts, to secure which the mortgage was given, had been due more than four years before the commencement of this suit, and that the defendant, Stephen G. McClenney, had been within the jurisdiction of the courts of...